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Len Levitt

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Appellate Dilemma: Right Reasoning, Wrong Result

Posted: 07/09/2012 11:38 am

Do the abuses stemming from the NYPD's 3 million, largely indiscriminate stops of black and Hispanic New Yorkers pose a greater than allowing a 14-year-old boy to run loose with a loaded gun?

Or put it another way: Is Police Commissioner Ray Kelly justified in stopping 3 million black and Hispanic New Yorkers, nearly 90 percent of whom have committed no crime, on the chance that one of them may be carrying a loaded gun?

That, in essence, was the dilemma facing a panel of the state's Appellate Division of the First Department.

In what may be the most disturbing judicial decision this side of federal judge Harold Baer, a three-judge majority threw out the conviction last week of 14-year-old Darryl Craig of the Bronx, who police arrested in 2010 for carrying a loaded Colt .25 semi-automatic pistol.

The judges' reasoning: the arresting officer had no basis to stop the teenager in the first place.

Writing in the Post, Kelly said that the judges' decision "may be as dangerous as the weapon itself."

The Post called the decision "scary."

And who would disagree?

Indeed, three months after the judges tossed his conviction, young Darryl, according to the Post, pumped two rounds into a Queens man, then while the man lay prostrate on the ground, attempted to shoot him again in the head.

Misguided as the judges' decision may appear to a layman, it's nonetheless boilerplate Fourth Amendment law: without suspicion of criminality -- that is, without a basis to stop the kid in the first place -- anything that follows from that stop must be suppressed.

The purpose of suppression law, which has been around since the 1970s, is not to allow someone carrying a loaded gun to walk. It's to ensure proper police work.

In that regard, the judges' decision strikes at the heart of the NYPD's current Stop and Frisk policy, which in last year alone resulted in 685,000 stops.

With nearly 90 percent of those stops producing no summons or arrest, one doesn't need to be a rocket scientist to conclude that there was probably no reasonable suspicion of criminality in a large percentage of them.

In their decision, the judges noted the NYPD's "widespread, aggressive police tactics in street encounters": i.e., Stop and Frisk. "The gradual erosion of this basic liberty can only tatter the constitutional fabric upon which this nation was built," their opinion read. "The ramifications go far beyond this single case."

Meanwhile, Kelly continues to defend his Stop and Frisk policy, saying it saves lives. That's a disingenuous stance from someone who criticized former police commissioner William Bratton for precisely the same abuses that the judges cited in Darryl Craig's case.

Referring to Bratton's claims that his aggressive policing had led to the city's dramatic crime reductions in the mid-1990s, Kelly said at the time: "You can probably shut down just about all crime, if you're willing to burn down the village to save it."

Then again, there's the possibility that the state's highest court, the Court of Appeals, will reverse the Appellate judges' decision.

As Finley Peter Dunne's fictional Mr. Dooley pontificated from his South Side Chicago pub at the turn of the 20th century: The Supreme Court follows the election returns.

What that means in today's world is that courts follow the direction of the media.

And the media outcry over the Darryl Craig decision has been, to say the least, loud.

This is where Federal District Judge Harold Baer comes in.

In 1996, Baer issued a decision, suppressing evidence in a drug case: heroin and cocaine found in a defendant's the car. His reasons echoed those of the Appellate Division judges: the police had no reasonable suspicion to stop the car.

The outcry was so great, there was talk of impeaching him. President Clinton was said to have leaned on Baer to resign.

So what did Baer do? He issued a second decision that reversed his earlier one. In it, he found there was reasonable suspicion to have stopped the car and question its occupant.

It was all the fault of federal prosecutors, Baer said, who failed to provide enough information that would have changed his initial decision.

If the Court of Appeals does reverse, they probably won't blame the Appellate Court judges. They'll blame the police.

 
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